Filed 9/29/26 Max v. 8e6 Corp. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
DAVID MAX, B344025
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 19STCV11560)
v.
8E6 CORP.,
Defendant and Appellant;
RALPH ROGARI,
Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County, Bradley S. Phillips, Judge. Affirmed.
Newmeyer & Dillion, Benjamin P. Pugh and Michelle D.
Brunson for Defendant and Appellant 8e6 Corp.
Rogari Law and Ralph Rogari for Plaintiff and Respondent
David Max and Respondent Ralph Rogari.
8e6 Corp. (8e6) appeals from an order denying its motion
for Code of Civil Procedure section 128.71 sanctions against
respondent David Max and Max’s counsel, respondent Ralph
Rogari. We affirm.
FACTUAL BACKGROUND
Max sued 8e6 and several entities and individuals not parties
to this appeal (collectively, the defendants). The trial court entered
judgment in favor of the defendants, and Max moved for a new trial.
On April 5, 2024, the defendants’ counsel emailed
Rogari expressing the view that the new trial motion violated
section 128.7, subdivision (b), warranting sanctions. Section 128.7’s
“safe harbor provision” requires a motion for section 128.7 sanctions
“not be filed with or presented to the court unless,” within 21 days
after a “notice of [the] motion . . . [is] served as provided in
Section 1010,” “or any other period as the court may prescribe, the
challenged paper . . . is not withdrawn or appropriately corrected.”
(§ 128.7, subd. (c)(1), capitalization omitted.) In an apparent
attempt to comply with this requirement, the defendants’ counsel
attached to his email—but did not file—a document captioned
“defendants’ motions for sanctions against plaintiff David Max and
his counsel of record, Ralph Rogari.” (Boldface & capitalization
omitted.) The document did not identify a date for the motion
hearing. Rather, it provided: “Please take notice that on [date]
at [time] or as soon as the matter may be heard in Department 9
of the above-entitled court . . . defendants . . . will move the court
for an order imposing monetary sanctions against plaintiff David
Max . . . and his counsel of record Ralph Rogari . . . , jointly and
1 All further statutory references are to the Code of Civil
Procedure.
2
severally, in an amount to be proven at the hearing of said motion,
but not less than $[amount], representing the reasonable attorney
fees and costs relating to this motion and defendants’ preparation
and filing of opposition papers to Max and Rogari’s motion for new
trial.” (Capitalization omitted.)
On April 19, 2024—14 days after defense counsel emailed
Rogari notice of the sanctions motion—the court heard Max’s
new trial motion and took it under submission. On April 29, 2024—
24 days after defense counsel’s email notice—the court denied the
new trial motion.
On May 3, 2024, defendants filed and served a motion for
section 128.7 sanctions against Max and Rogari. This version of
the motion identified a hearing date and time.
On November 27, 2024, the court heard and denied the
sanctions motion, citing multiple procedural defects, including
failure to comply with the safe harbor provision.
8e6 appealed the order denying the defendants’ sanctions
motion.
DISCUSSION
8e6 argues, inter alia, that the court erred in concluding
the defendants failed to comply with the safe harbor provision.
According to 8e6, Max could have withdrawn or corrected his
motion for new trial at any time before the court denied it on
April 29, 2024, notwithstanding the court’s earlier hearing on
the motion. Thus, 8e6 argues, Max and Rogari were afforded the
requisite 21-day safe harbor period. We need not address this or
8e6’s other arguments, however, because the defendants failed
to comply with the safe harbor provision by failing to provide the
notice that provision requires. 8e6 does not argue otherwise. As
3
we explain below, this alone is fatal to the sanctions motion, and
we must affirm.2
“A formal noticed motion is required to begin the 21-day
[safe harbor] period” under section 128.7. (Galleria Plus, Inc.
v. Hanmi Bank (2009) 179 Cal.App.4th 535, 538 (Galleria Plus);
see Transcon Financial, Inc. v. Reid & Hellyer, APC (2022) 81
Cal.App.5th 547, 550 [“[s]ervice of the sanctions motion triggers
the 21-day safe harbor period”].) Section 128.7, subdivision (c)(1)
requires such formal notice “be served as provided in section 1010.”
(Capitalization omitted.) To comply with section 1010, a notice
of motion “must state when . . . it will be made.” (§ 1010.)
“Reading these two provisions together, a notice of motion seeking
section 128.7 sanctions must reflect when the motion will be heard.”
(J.N. v. Goldberg (2026) 120 Cal.App.5th 544, 549–550 (Goldberg),
italics added, citing Galleria Plus, supra, at pp. 537–538; id.
at p. 538 [“[s]ection 128.7’s incorporation of section 1010 is
compulsory, not permissive”].) A notice that fails to do so is
“ ‘fatally defective’ ” and does not begin the 21-day safe harbor
period. (Goldberg, supra, at p. 550.) The First District recently
reached a different conclusion and expressly disagreed with
2 The trial court did not rely on lack of proper notice
in denying the sanctions motion. Nevertheless, “we review
the correctness of the challenged ruling on appeal and are not
limited by the trial court’s reasons supporting it.” (Sehulster
Tunnels/Pre-Con v. Traylor Brothers, Inc./Obayashi Corp. (2003)
111 Cal.App.4th 1328, 139, fn. 7; see People v. Mason (1991) 52
Cal.3d 909, 944 [“[i]t is axiomatic that we review the trial court’s
rulings and not its reasoning”].) 8e6 had the opportunity to brief
this (purely legal) issue on appeal and chose not to do so: Max
and Rogari raised the issue in their respondents’ brief, and 8e6
did not file a reply brief.
4
Galleria Plus and Goldberg. (See Ari Law P.C. v. AutoNation.com,
Inc. (2026) 122 Cal.App.5th 898, 910–911 (Ari Law).) Galleria
Plus and Goldberg are decisions of our District Court of Appeal—
Divisions Four and Five, respectively. We elect to follow these
decisions, rather than create a split of authority between the
divisions of our district. (See Grande v. Eisenhower Medical Center
(2020) 44 Cal.App.5th 1147, 1168 (dis. opn. of Ramirez, P. J.) [ “as
a matter of stare decisis,” where existing authority is not “so plainly
wrong as to justify creating a split of authority,” following that
authority “has the virtue of stating clear rules on which parties on
all sides can easily rely going forward”].)
Here, the April 5, 2024 notice did not identify a date and
time for a hearing on the sanctions motion, “thereby triggering the
fatal flaw under sections 128.7 and 1010 as well as Galleria Plus.”
(Goldberg, supra, at p. 550.) The mandatory safe harbor period
never began, and defendants are not statutorily eligible to recover
sanctions.
We acknowledge that many trial courts “in the civil
department of the Los Angeles County Superior Court . . .use[ ] a
[court reservation system (CRS)]” that “does not permit [a] motion
date to be reserved more than three days before electronically
filing the pleading.” (Goldberg, supra, 120 Cal.App.5th at p. 547;
see Ari Law, supra, 122 Cal.App.5th at p. 911 [disagreeing with
Goldberg and Galleria Plus based in part on this CRS issue].) But
we agree with Division Five that this feature of “the CRS [does]
not relieve [a party seeking sanctions] of his obligation under
sections 1010 and 128.7 to serve a notice of motion that reflects
when the motion will be made.” (Goldberg, supra, at p. 550.) Nor
are we at liberty to “ignore the unambiguous statutory dictates
of sections 128.7 and 1010.” (Goldberg, supra, at p. 550.) “The
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CRS undoubtedly makes it inconvenient to abide by the statutory
notice and safe harbor requirements in that litigants must seek an
ex parte order from the court to work around the CRS’s three-day
filing limitation, but the CRS did not invalidate Galleria Plus or
carve out an exception to the requirements of sections 128.7 and
1010.”3 (Goldberg, supra, at pp. 551–552, fn. omitted.)
Nor do we view a party’s failure to comply with these
requirements as harmless. (See Goldberg, supra, 120 Cal.App.5th
at pp. 551–553; see Barnes v. Department of Corrections (1999)
74 Cal.App.4th 126, 136 [“informal notice of an intent to seek
sanctions in the future cannot serve as a substitute to the
requirements set forth in section 128.7 for a formal noticed
motion”].) “Strict compliance with the statute’s notice provisions
serves its remedial purpose and underscores the seriousness of
a motion for sanctions.” (Galleria Plus, supra, 179 Cal.App.4th at
p. 538; CPF Vaseo Associates, LLC v. Gray (2018) 29 Cal.App.5th
997, 1007 [the doctrine of substantial compliance does not apply to
the safe harbor provision].)
Thus, regardless of the merits of the sanctions motion or any
other procedural defects 8e6 argues the court erroneously relied
on, the defendants’ failure to comply with the notice component of
section 128.7’s safe harbor provision required the trial court to deny
the sanctions motion.
3 Nor is ignoring the canons of statutory interpretation
the only means of addressing such inconvenience. To the extent
a superior court’s use of a CRS creates additional steps for a
party seeking sanctions, it is within the superior court’s power to
address this by amending its rules governing the use of the CRS.
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DISPOSITION
The order is affirmed. Respondents are awarded their costs
on appeal.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
BENDIX, J.
M. KIM, J.
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